Unauthorized Practice of Law: Elizabeth Warren

This originally came up in the Scary Republican Base thread, where it didn't really belong, so I started a new thread.

I don't really care if EW wins or loses. I'm not a Massachusetts resident, and per 538 the balance of the Senate isn't likely to shift one way or the other (plus with the retarded filibuster rule in place, 50 isn't all that important). If anything the thing that most attracts me to this story is a dislike of law professors and particular legal royalty.

That said, perhaps because of the heat of the election campaign, a lot of misinformation is being spread regarding the rules surrounding the practice of law.

I

Nekojin wrote:

It's also worth noting, though probably irrelevant in this case, that state Bar Associations only regulate law practiced in that State's courts. They have no standing over Federal courts. While there IS actually a Federal Bar Association, it doesn't have the same legal weight that State Bars do, being a voluntary and informal association. No Bar Certification is needed to practice at the Federal level (although you'll have a hard time finding clients without one, unless you've already made a name for yourself).

Every federal court has a bar to which you must be admitted before you can practice before that court (although an attorney may be admitted pro hac vice - for a single case).

An official Certificate of Good Standing from the Supreme Judicial Court of Massachusetts (617-557-1050), dated within 90 (ninety) days of application submission, attesting to your membership in the Massachusetts Bar must be filed with your application.

An attorney is eligible for admission to the bar of a court of appeals if that attorney is of good moral and professional character and is admitted to practice before the Supreme Court of the United States, the highest court of a state, another United States court of appeals, or a United States district court (including the district courts for Guam, the Northern Mariana Islands, and the Virgin Islands).

To qualify for admission to the Bar of this Court, an applicant must have been admitted to practice in the highest court of a State, Commonwealth, Territory or Possession, or the District of Columbia for a period of at least three years immediately before the date of application; must not have been the subject of any adverse disciplinary action pronounced or in effect during that 3-year period; and must appear to the Court to be of good moral and professional character.

In short it is impossible to just be admitted to the federal bar, you have to first be admitted as a member of a state bar.

II(Paraphrased from several posts) "The only way Warren could have violated the rules on unauthorized practice is if she appeared in a Massachusetts court, or maybe if she met face-to-face with a client in Massachusetts and gave advice on an issue of Massachusetts' law"

The Massachusetts definition of the practice of law is far broader (as is the definition in every state I'm aware of).

Quote:

The Definition of the Practice of Law

(a) The practice of law shall be performed only by those authorized by the Supreme Judicial Court of Massachusetts.

(b) Definitions:

(1) The "practice of law" is the application of legal principles and judgment with regard to the circumstances or objectives of a person that require the knowledge and skill of a person trained in the law.

(2) "Person" includes a corporation, an association, a trust, a partnership, and any other organization or legal entity.

(3) "Tribunal" includes a court or other adjudicatory body.

(c) A person is presumed to be practicing law when engaging in any of the following conduct on behalf of another:

(1) Giving advice or counsel to a person as to his or her legal rights or responsibilities or those of others;

(2) Selecting, drafting, reviewing, recording, or completing legal documents or agreements that affect the legal rights or responsibilities of a person;

(4) Representing a person before a tribunal, including, but not limited to, preparing or filing documents or conducting discovery, or appearing before such body; or

(5) Negotiating legal rights or responsibilities on behalf of a person.

(d) Exceptions: The following are permitted as exceptions to the requirements of Paragraph (a):

(1) Serving in a neutral non-adjudicative capacity as a mediator, conciliator or facilitator, or in an adjudicative capacity under court supervision;

(2) Affording advocacy assistance by non-lawyers through a governmental entity, a qualified legal assistance organization, or a not-for-profit entity, where no fee is charged, or as permitted by G.L. c. 209A;

(3) Participating in labor negotiations, arbitrations, or conciliations arising under collective bargaining rights or agreements; and

(4) Participating in a regulatory or administrative proceeding pursuant to the rules of the agency, where no fee is charged for such participation.

First, only attorneys, or if unrepresented - a party, may sign legal filings. See Federal Rules of Civil Procedure, rule 11.Second, "Of Counsel" means, and has always meant, an attorney that has a loose affiliation with a particular law firm, as opposed to an associate or partner of a particular law firm.

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Did Elizabeth Warren actually engage in the unauthorized practice of law?

It isn't clear right now. There is certainly enough evidence to raise legitimate questions that ought to be addressed by her campaign.

Some facts that have come out so far-

She's been teaching at Harvard and living in Boston since 1992.

During at least a good portion of that time, in addition to her teaching and research work, she has earned money by doing some sort of work on the side. Briefs with EW's signature and Harvard office that have been dug up go back to the 90s and include cases in the Supreme Court and various circuit courts.

At least one of these cases (Travelers Insurance) generated over $200,000 in billings.

Did EW establish an office or otherwise establish a systematic or continuous presence in the jurisdiction for the practice of law?

Did EW ever hold out to the public or represent that she was admitted to practice law in Massachusetts?

If all her legal services were provided on a temporary basis, did they all meet one of the four exceptions mentioned in 5.5(c).

Whether or not there is plenary exception (arising either out of the rules or directly from the US Constitution) for work done for Federal Court cases.

Some of these questions involved detailed legal research into the Massachusetts ethical rules and precedents, but most are fact based and depend on just how extensive EW's side practice was. In any event, IMO, and the opinion of commenters on both sides of the issue, these concerns are not frivolous.

Couldn't a mod just save us all a lot of rehashing by copying the 3 pages of this discussion that has already transpired in the SRB thread over to this one?

Edit to make this post a little more on-topic....

I'm not a legal scholar nor did I have any prior knowledge of this topic. But having read every post from the aforementioned derail, I found the arguments against your position to be the more compelling.

An attorney is eligible for admission to the bar of a court of appeals if that attorney is of good moral and professional character and is admitted to practice before the Supreme Court of the United States, the highest court of a state, another United States court of appeals, or a United States district court (including the district courts for Guam, the Northern Mariana Islands, and the Virgin Islands).

Has she done any work before the First Circuit? Travelers vs Bailey was before the Second Circuit.

edit; apaprently there was a case uncovered this morning where Warren made "an appearance" in a First circuit case.

something I don't understand is: not everyone that appears or testifies or contributes to a case, is a lawyer. The court might hear from experts of many kinds, including experts in the law, who might not be lawyers. they might be historians, or anthropologists or librarians with an expertise in some area of law.

Did Warren actually represent anyone in these cases? Was she retained as an attorney by one of the parties in these cases, or did she provide some expertise to the law firm that was representing the party? Does that distinction matter?

She was, as far as I can tell, authorized to practice law (in NJ), so she is an attorney. It sounds like she could have a relationship with the firm that was representing a party in the case, such that it was appropriate to identify her as 'of counsel', but that her work on these particular cases was not as an attorney representing the client. I haven't seen anywhere what actual services she did provide. Is it possible for her to have provided services that did not count as acting as an attorney? If so, are there records that indicate if that is, or is not, the case?

The only thing I've been able to take away from this whole merry-go-round word salad is that the laws and regulations regarding the practice of law in this country and the various states are absolutely fucked.

I don't really care if EW wins or loses. I'm not a Massachusetts resident, and per 538 the balance of the Senate isn't likely to shift one way or the other (plus with the retarded filibuster rule in place, 50 isn't all that important).

Not to derail the thread, but I'd argue that it is relevant, since Democrats simply haven't shown themselves willing to engage in the same level of obstructionism when they're the Senate minority party.

the name of the attorney who is counsel of record for the party concerned (who must be a member of the Bar of this Court except as provided in Rule 9.1) and on whom service is to be made, with a notation directly there under identifying the attorney as counsel of record and setting out counsel’s ofﬁce address, e-mail address, and telephone number. Only one counsel of record may be noted on a single document, except that counsel of record for each party must be listed on the cover of a joint appendix. The names of other members of the Bar of this Court or of the bar of the highest court of State acting as counsel, and, if desired, their addresses, may be added, but counsel of record shall be clearly identiﬁed. Names of persons other than attorneys admitted to a state bar may not be listed, unless the party is appearing pro se, in which case the party’s name, address, and telephone number shall appear.

But we know how liberally biased the American Bar Association is, right?

In her opinion, the whole thing is a crock of shit and you're all a bunch of retards for even bringing it up. (her words) More seriously, this is widespread practice from her experience and isn't anything to get worked up over.

She took about five minutes to look up the Cornell guy and basically said "Partisan Hackery, fuck this shit."

Fredrickson said it was his “personal reading” of the law, and that he was “not speaking on behalf of the Board of Bar Overseers.”...Fredrickson stated that he did not purport to determine whether Warren violated the applicable law. He said he was just “speaking hypothetically” and not specifically as to Warren because “I know so little about Elizabeth Warren and her practice.”

I agree it's a widespread practice among law professors, and they rarely get smacked down because they are treated like royalty in the legal profession. Regular joe-schmoes on the other hand have to be much more careful in following these kind of rules, because they can and will get suspended or disbarred.

An attorney is eligible for admission to the bar of a court of appeals if that attorney is of good moral and professional character and is admitted to practice before the Supreme Court of the United States, the highest court of a state, another United States court of appeals, or a United States district court (including the district courts for Guam, the Northern Mariana Islands, and the Virgin Islands).

Has she done any work before the First Circuit? Travelers vs Bailey was before the Second Circuit.

edit; apaprently there was a case uncovered this morning where Warren made "an appearance" in a First circuit case.

I don't know enough about the practice of law in MA to say much (I've only studied CA law), but I looked at the docket report itself, and it lists "appearance" by attorneys separate from those who have been "added to [the] case." I'm not sure what that means as I've not been involved in litigation, but this does get to the issue of representation -- certainly she was listed as an attorney for one side, but I'm not sure what that means either.

This is a pretty arcane issue, and while it may or may not be legitimate, it certainly would never have come up except for the senate race. It seems a little ridiculous to care about this now, but that's just my opinion.

It seems like without further facts, this is pretty weak. If she was active in Texas or New Jersey and the Federal Courts were OK with it, there's nothing much to speak of here. That, and it seems to be pretty common practice. Also, it seems like this is extremely unlikely to be prosecuted in any fashion.

That said, I'm assuming after all this that most profs will be looking at this harder and maybe get admitted to their local bar just to avoid any further nonsense along these lines.

The analysis there is pretty tentative (as is appropriate) and contingent on as of yet unknown facts.

Quote:

It seems like without further facts, this is pretty weak. If she was active in Texas or New Jersey and the Federal Courts were OK with it, there's nothing much to speak of here. That, and it seems to be pretty common practice. Also, it seems like this is extremely unlikely to be prosecuted in any fashion.

That said, I'm assuming after all this that most profs will be looking at this harder and maybe get admitted to their local bar just to avoid any further nonsense along these lines.

I'm sure it is a common practice among law professors, but the rest of us have to be a lot more careful because bar ethics committees don't treat us like gods.

Elizabeth Warren has built her political career condemning the financial sector for manipulating and avoiding laxly enforced regulations for their own enrichment. If Prof. Jacobson’s research and analysis is correct, and increasingly it is appearing that he had detected fire as well as smoke, then Warren has been doing exactly what she (accurately) accuses banks and brokers of doing…in a word, cheating.

Elizabeth Warren has built her political career condemning the financial sector for manipulating and avoiding laxly enforced regulations for their own enrichment. If Prof. Jacobson’s research and analysis is correct, and increasingly it is appearing that he had detected fire as well as smoke, then Warren has been doing exactly what she (accurately) accuses banks and brokers of doing…in a word, cheating.

You know, that's the shame of it. She has been (accurately) fighting against frauds. This in no rational way invalidates her work - except, of course, it does in every other way.

Perhaps this was inevitable when a vestige of an earlier controversy along these lines invaded the Elizabeth Warren-Sen. Scott Brown race: some of Brown’s staff were seen doing the old Atlanta Braves “tomahawk chop” to mock Professor Warren’s beneficial delusion that she is a bona fide Native American. The political correctness police were all over this one, though the logic, as in a lot of political correctness, was strained: doing a famous fake Indian gesture to mock a fake Indian political candidate is an insult to…real American Indians? Even after the real Cherokees have announced that Warren’s pretensions of affirmative-action worthy Native American status is offensive to them? I’m afraid those who are empowered by being offended are just too creative for me—I don’t get it.

Ethics isn't a partisan issue. As a gatekeeper to he guild, Prof. Warren should have conducted herself far more appropriately.

I'm assuming you accidentally left out the important caveat that goes something like: "provided it is proven that there was actual wrong-doing". Because it would be pretty lazy to just condemn someone over mere heresay, right?

I was taught that attorneys should avoid "even the appearance" that you are violating the law or any ethical principles. This is someone who should have represented the best of the profession. That she tried to skate by for what I can only guess was personal convenience is maddening.

Even if she has some technicality that blesses her ethical lapses in a manner suitable to prevent prosecution, the documented evidence has shown her true colors. It amazes me she thought she could get away with this in a campaign and shocks me that her researcher didn't force her to self report and resolve this long ago.

You've given every 'appearance' in a number of threads that you jump to conclusions without assessing the evidence objectively, and then try to defend those subjective points of view when presented with emprical evidence that your assumptions are flawed. Given this, I can only assume you are a terrible lawyer and you should apologise to everyone of Ars, your Bar Association, God, and the universe in general.

What's more than telling is that William Jacobson -- nor any other Massachusetts attorney -- has filed a formal complaint with the Board of Bar Overseers on the issue. Had they done so, the Board would have been compelled to investigate and issue a formal ruling on the matter. If he legitimately thought this was a real problem legitimately affecting the practice of law in Massachusetts, a formal complaint should have been his first stop. Instead, he's content with allowing the issue to fester in the blogosphere.

Why no formal complaint? Because the outcome would be relatively swift and decisive -- and highly unlikely to show any wrongdoing on the part of Warren. That much was stated clearly by the general counsel for the Board himself. By confining this "issue" to the court of public opinion, he instead invites the issue to be blown out of proportion while simultaneously avoiding any chance of serious resolution before the election.

What's more than telling is that William Jacobson -- nor any other Massachusetts attorney -- has filed a formal complaint with the Board of Bar Overseers on the issue. Had they done so, the Board would have been compelled to investigate and issue a formal ruling on the matter. If he legitimately thought this was a real problem legitimately affecting the practice of law in Massachusetts, a formal complaint should have been his first stop. Instead, he's content with allowing the issue to fester in the blogosphere.

Would someone need to have standing to file a complaint (by standing, I mean "be a former client" or "be an officer of the court")?

If not, maybe I'll file a complaint...

edit: How to File a Complaint - it looks like they want pretty specific information regarding any malpractice, it would be up to someone who really knows the ins and outs of the case to file a complaint.

While thinking about it, why didn't any of the opposition counsel file a complaint during the original litigation? I've been involved in enough litigation to know that when big money is involved, lawyers look for any possible angles.

Why no formal complaint? Because the outcome would be relatively swift and decisive -- and highly unlikely to show any wrongdoing on the part of Warren. That much was stated clearly by the general counsel for the Board himself.

RTFThread. The cg was speaking hypothetically due to his own admitted ignorance of the facts of EW's practice.

RTFThread. The cg was speaking hypothetically due to his own admitted ignorance of the facts of EW's practice.

I did, that's why I said "highly unlikely," not "definitively."

It still doesn't explain why Jacobson hasn't seen the issue to be of substantial seriousness to be bothered to file a formal complaint, though.

I suppose then that any qualms about Romney's taxes should be referred to the IRS, and anyone publishing those concerns is simply muckraking?

Ditto illegal immigrant nannies and the USCIS, and so forth?

If she broke the law, or violated her ethical responsibilities, whether intentionally or neglect, it is relevent to the people deciding whether or not to vote for her. At a minimum they deserve more of a response than sending out Tribe to navel gaze.

I suppose then that any qualms about Romney's taxes should be referred to the IRS, and anyone publishing those concerns is simply muckraking?

That's a facetious comparison and you know it. There's no legal recourse to force Romney to release his taxes. It's purely a public trust and perception issue related to historical convention with Presidential candidates. The issue solely resides in the public sphere.

I'm not harping on Jacobson for going public with this -- I'm harping on him for solely going public with it. He made a conscious decision to limit his analysis and investigation to blog posts rather than follow through with his duty as a licensed attorney in the Commonwealth of Massachusetts to report instances of wrongdoing on the part of other attorneys.

I'm old enough to remember how the GOP started flushing it's credibility down the shitter in the 1990's with Bill Clinton. This is the exact same kind of FUD. Brown can't beat her on his merits, so they're trying to do just enough character assignation on her to cost her the election but not enough to really look like blatant unrepentant douche bags. Classic Karl Rove shifty politics shit.

I'm not harping on Jacobson for going public with this -- I'm harping on him for solely going public with it. He made a conscious decision to limit his analysis and investigation to blog posts rather than follow through with his duty as a licensed attorney in the Commonwealth of Massachusetts to report instances of wrongdoing on the part of other attorneys.

Is he a member of the Mass. bar? He teaches in NY and used to practice in Rhode Island.

Also it's been less than a week. He may not be familiar with the procedures. I know I'm not, is something analogous to standing needed? Finally, if the TPTB at the Mass. bar are anywhere near as slow as those in NY he wouldn't hear anything until well after the election.

Finally, if the TPTB at the Mass. bar are anywhere near as slow as those in NY he wouldn't hear anything until well after the election.

That's a fair point and is a good reason for going public, but it still doesn't explain why he went to such substantial lengths to investigate this matter and failed to file a formal complaint. According to the procedures listed above, it would've been a simple matter of printing out his supporting documentation, writing a letter explaining the complaint, stuffing it into an envelope, and mailing it. Or faxing it. Half an hour of effort -- tops.

His failure to do so -- and failure to continue to do so -- really casts doubt on his intentions. Is he looking to correct a serious breach of legal ethics, or is he simply muckraking to damage the reputation of someone he sees as a political opponent?

Is he looking to correct a serious breach of legal ethics, or is he simply muckraking to damage the reputation of someone he sees as a political opponent?

Is this really even a question? Come on. No one would ever have tried to make hay out of this if she weren't running for national office. It's blatantly obvious to the point of not even being worth bringing up.